Commentary Detail

The legislature passed a law in 1993 that says, quite plainly, that when a school district loses its accreditation, that district must pay for students who wish to attend school in a nearby district. But did the legislature say whether an accredited district nearby - say, Clayton or Webster Groves - could limit the number of students the district will take? No, it did not. Did it say that the nearby districts would have to hire more teachers and build new classrooms to make room for new students? No, again.

Like a lot of things legislatures do, the law is short on specifics. The legislators in 1993 obviously meant well. After all, if a school district fails, shouldn’t the neighboring districts help care for the children?

When the 1993 law passed to cover districts that lose accreditation, it did not seem likely that the State Board of Education ever would revoke accreditation for big districts like St. Louis, Riverview Gardens or Kansas City.

But now the state board has done so, and when Clayton denied places for St. Louis children at the expense of the St. Louis district, four parents sued in the St. Louis county circuit court, and they lost. When they appealed the case – called Turner v. Clayton School District - the Supreme Court of Missouri held that the law means what it says, and sent the case back to Circuit Judge David Vincent in St. Louis County to figure out what remedy the children should have.

Judge Vincent is in an odd situation – the legislature created this problem, but provided no clues as to how to solve it. Various legislators last year and this year have made proposals for a “Turner fix, ” but the bills have become burdened with some groups’ favorite ideas – school choice, vouchers, no-tenure for teachers, tax credits for parochial school parents, more charter schools… you name it. The chance to pass favorite ideas in the name of a “Turner fix” is tempting but it makes a solution difficult. As one rural legislator said, in a colorful twist of a familiar phrase: “there’s too much bath water to drink to get to the baby.”

In the midst of this mess, Judge Vincent has heard evidence and will decide the case. But the real issues are political – who gets to attend school in the suburban districts? If there are not enough spaces, who chooses the children to get them, and how are they to be chosen?

Judges are not equipped for such political questions - these questions need answers from politicians, not judges. Legislators can find answers by being politicians in the best sense of the word - by compromising, by reasoning together, by putting aside or bending their ideological agenda, by trying to create the greatest good for the greatest number of children. But if legislators fail at this task, and Judge Vincent has to make a decision without their guidance, will politicians complain that he is “legislating” from the bench?

The bottom line is simple – Missouri legislators should pass a bill that solves the problem, however imperfect and compromised their solution might be. That, after all, is their job. They should not expect courts to do their job for them.

(The opinions expressed are not necessarily those of St. Louis Public Radio.)

Michael A. Wolff is a professor of law at Saint Louis University School of Law and co-director of its Center for the Interdisciplinary Study of Law. He was a judge of the Supreme Court of Missouri from August 1998 to August 2011, and served a two-year term as Chief Justice from July 2005 to June 2007.
Prior to his judicial service, Judge Wolff was on the faculty of Saint Louis University School of Law for 23 years, was active in trial practice and was co-author of Federal Jury Practice and Instructions and numerous other legal publications. Judge Wolff is a graduate of Dartmouth College, where he was editor-in-chief of the daily newspaper, and the University of Minnesota Law School. During law school he was a reporter for The Minneapolis Star.